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U.S. Net Neutrality Movement in Retreat

Recent evidence confirms that the U.S. net neutrality movement is in substantial retreat and trying to fall back to more defensible ground, on which to make its next stand. The movement is by no means defeated overall, as it is resilient, well-funded and organized. It is actually in ascendance in Europe with the European Parliament's vote supporting net neutrality.

Importantly FreePress, the clear leader of the net neutrality movement via its six-year stewardship of SaveTheInternet.com, recently asked the D.C. Court of Appeals for permission to withdraw its legal challenge to the FCC's net neutrality rules for not being strict enough. After six years of full-throated constant campaigning for net neutrality legislation or FCC regulation in the U.S., it is remarkable that FreePress has quietlyretreated from the latest and most pivotal net neutrality battlefield in the U.S. -- i.e. whether or not the FCC's net neutrality regulations stand or are thrown out by the D.C. Court of Appeals. FreePress' emailed statement to reporters said: "We felt that there were better ways to accomplish our goals of promoting Internet freedom, and decided to direct our resources elsewhere in the continued campaign to preserve the open Internet."

Translation: We realized our legal position that the FCC net neutrality regulations were not tough enough was a total loser and frankly ridiculous given that the Court is highly likely to rule the FCC didn't have the authority to regulate net neutrality in the first place.

Verizon's devastating brief to the court shows why FreePress wants to distance itself from this upcoming fiasco for net neutrality supporters. FreePress obviously knows the Appeals Court has already found in Comcast vs. The FCC that the FCC does not have regulatory authority over broadband, and appreciates that Verizon has four strong additional legal and constitutional arguments against the FCC order. Verizon only needs to convince the court of one of these arguments for the FCC's Open Internet Order to be vacated.

FreePress also should want to distance its longtime frame of net neutrality as freedom of speech and the "First Amendment of the Internet" from this court decision. In its media advocacy and fundraising, freedom of speech is a great political rallying cry. However, in a court of law it’s a loser legal frame because every lawyer knows that the First Amendment only protects speech from Government censorship, not from other people or non-governmental entities like corporations.

In the context of Verizon's legitimate First Amendment constitutional argument, supported by multiple precedents, that the FCC's net neutrality regulations are an unconstitutional Government abridgment of Verizon's free speech, FreePress is wise to slink away and not further press its bogus free speech claims legally in this forum. So expect FreePress to continue to politically push its free speech frame, but not in the context of this court challenge because it would make them look ridiculous and legally clueless.

The most interesting development in the net neutrality movement's retreat in the U.S. is that we are witnessing the third rebranding and re-framing of the net neutrality movement in the last six years. The original branding was "net neutrality," first conceived by Stanford Professor Lawrence Lessig, but coined as a buzzword by Columbia Professor Tim Wu, who later became Chairman of FreePress and mainstreamed the term in D.C. under FreePress' SavetheInternet.com.

After net neutrality failed to gain traction politically because it was seen as a solution in search of a problem, Google helped to rebrand net neutrality as "preserving the free and open Internet" via its leadership of the Open Internet Coalition and its constant advice to brand all things regulatory "Open," including the FCC's Open Internet Order.

Anticipating that the Appeals Court will deep six the FCC's Open Internet order because it lacks statutory authority, FreePress is trying to remake the movement yet again for a third time, under the banner that net neutrality is "Internet Freedom." FreePress' Declaration of Internet Freedom, has most of the original SaveTheInternet.com loyalists featured: Public Knowledge, Color of Change, Daily Kos, Demand Progress, NetRoots Nation, New America Foundation, Marvin Ammori, Yochai Benkler, Vint Cerf, Susan Crawford, Andrew McLaughlin, Sascha Meinrath, Barbara Van Schewick, Aaron Schwartz, Jonathan Zittrain, etc.

The constant need to reboot, reframe, rebrand, remake the net neutrality concept for public and government consumption, exposes a movement in retreat in search of a new, different and better ground to make its next stand for regulation of the Internet and government control of the broadband Internet infrastructure.

What FreePress and the rest of the net neutrality movement fail to accept is that, at least in America, the concept of net neutrality has failed because it is a bogus, unnecessary, and very destructive solution in search of a problem. As the old adage goes: this dog can't hunt.